Yes I read it, and perhaps I flatter myself, but I think I understood it. It is just that I do not find the reasoning persuasive.

Back to the Future on DiscriminationJune 28, 2013 "Equal laws protecting equal rights; the best guarantee of loyalty and love of country." --James Madison

Still fighting discrimination like it's 1955

The past week was a busy one for the Supreme Court. On Monday, in the area of so-called affirmative action, the Court issued its opinion in Fisher v. University of Texas at Austin, a discrimination case, and, on Tuesday, it issued its opinion in Shelby County v. Holder, which, in effect, negated Section 3 of the Voting Rights Act of 1965.These cases seem to continue the Supremes' movement away from the Civil Rights Era view of the necessity of race-based preferential treatment. Some background:Fisher is the latest in a line of discrimination cases that started with the Regents of the University of California v. Bakke in 1978. In Bakke, the Supreme Court ruled as unconstitutional the practice of the University of California (Davis) setting aside seats for minorities to be filled by using different admissions processes in the name of classroom "diversity."

In 2003, the Supreme Court muddied the issue in Grutter v. Bollinger, a 5-4 decision upholding the affirmative action admissions policy of the University of Michigan Law School. Writing for the majority, Justice Sandra Day O'Connor held the Law School had a compelling interest in promoting class "diversity." Therefore, a race-conscious admissions process that favored "underrepresented minority groups" but also took into account other factors evaluated for every individual applicant did not amount to an unconstitutional quota system under Bakke -- at least for 25 years.

While observers hoped that Fisher would clarify some of Grutter's vagueness, it did not.

In Fisher, the plaintiff, a white woman denied admission to UT (Austin), contended that the school's practice of accepting the top 10 percent of each Texas high school's graduating class, regardless of their race, violated the Equal Protection Clause of the Fourteenth Amendment. Some 81 percent of the incoming class was admitted under this procedure. Fisher, with a grade point average of 3.59 and in the top 12 percent of her class, was not. Admission criteria for the remainder of candidates for the incoming class included their talents, leadership qualities, family circumstances and race.

The Supreme Court punted on the main issue. A 7-1 majority (Justice Elena Kagan recusing) voided the appellate court's ruling in favor of UT and remanded the case, holding that the lower court hadn't applied the Grutter and Bakke standard of "strict scrutiny" to the admissions program.

Justice Clarence Thomas, the sole dissenter, wrote that he would have overturned Grutter and thus the whole convoluted legal structure of racial preferences as a violation of the Equal Protection Clause of the Fourteenth Amendment.

There was a more definitive resolution in the Shelby case. Two provisions of the Voting Rights Act (VRA) were in play -- the preclearance requirements of Section 5 and the pre-existing coverage formula in Section 4(b). The part of the VRA that the Supreme Court declared unconstitutional by a 5-4 vote was the coverage formula, which hasn't changed since the inception of the Act. As John Fund at National Review put it, "Section 4 of the Voting Rights Act forced states that had poor minority registration or turnout numbers in the 1960s to remain in a permanent penalty box."

Chief Justice John Roberts, writing for the majority, said, "Congress -- if it is to divide the states -- must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past."

It is the coverage formula that triggers the preclearance provisions of Section 5. "Covered jurisdictions" must convince the Justice Department or a three judge panel of the United States District Court for the District of Columbia to "preclear" attempts to change "any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting."

Section 5 was left intact. Nevertheless, the Court's four Leftists dissented, with Justice Ruth Bader Ginsburg complaining that the Court is essentially saying the VRA has been so successful that it should be ended. But if there's some reason why the law is still necessary -- say the fact that blacks in Mississippi vote at a higher rate than whites, while the state with the lowest black voter turnout compared to whites is Massachusetts -- Congress could enact a law replacing Section 4 and bringing the preclearance criteria up to date.

More important, regarding the contention that the Supremes nullified the VRA, The Wall Street Journal's James Taranto points to a 2010 Yale Law Journal article that states, "Commonly called the bail-in mechanism or the pocket trigger, ection 3 authorizes federal courts to place states and political subdivisions that have violated the Fourteenth or Fifteenth Amendments under preclearance..."

Taranto goes on to state, "Preclearance under Section 3 does not suffer from the constitutional infirmity that doomed Section 4. It requires a contemporary factual finding of discrimination, either a decision by a judge or an acknowledgment by the defendant jurisdiction."

This isn't the last we will hear of "affirmative action," but suffice it to say, the rulings represent a (small) step forward in voting rights and equality under the law, not "turning back the clock" as Leftists bemoan.

http://themonkeycage.org/2013/06/28/public-opinion-the-court-and-justice-kennedy/From the article:But why would the Court respond to public opinion? Judges are not elected by the public. Isn’t the purpose of a counter-majoritarian institution precisely that it does not follow swings in public mood? Still, political scientists have amassed an impressive array of evidence in favor of the hypothesis that the Court follows changes in public opinion. But why?

"the social-psychological theory that people with more moderate ideological views are more likely to change their views in response to information about what others think. William Mishler and Reginal Sheehan found that: the impact of public opinion is greatest among moderate justices who are likely to hold critical swing positions on the Court."

I like to call these people palm trees; they lean with the wind. We all want to be loved. Those who lack core, guiding principals are the most vulnerable to this human desire.

As I posed previously, it's been 225 years under this constitution, what changed in gayness, what changed in the constitution? Nothing, nothing. It was public opinion that was changed, meaning the need for the Court to step in and settle the issue was becoming less necessary, if it was necessary at all in the first place.

"Justice Clarence Thomas, the sole dissenter, wrote that he would have overturned Grutter and thus the whole convoluted legal structure of racial preferences as a violation of the Equal Protection Clause of the Fourteenth Amendment."

Only one Justice believes that convoluted, Grutter v Bolllinger, Univ of Michigan Law School, affirmative action decision deserves an overturn? Preferential treatment for underrepresented minority groups, a compelling interest in promoting class diversity? Good grief. College applications, mortgages, everything must take race into consideration, and that is better than treating people equally? These aims were listed in what Article or Amendment? And they help whom?

This supports something I wrote previously, there is perhaps only one conservative on the Court. Why are these common sense, constitutionally based views so often expressed sole dissent?

Article II, Section 3, of the Constitution states that the president "shall take Care that the Laws be faithfully executed."

Timing of the implementation of Obamacare was an essential aspect of the budget constraint issue and budget scoring was an essential element of securing the votes for its passage.

Co-equal branches? The House has repealed Obamacare 37 times. This is a meaningless act because they were not joined by the Senate nor obviously will it be signed by the President.

Yet President Obama unilaterally delayed implementation of the employer mandate, which is one of the most controversial and damaging aspects of the law. And he simultaneously declared that individuals will not even have IRS records verified for their subsidy, encouraging larger numbers to sign up and become reliant on the new law, making it harder to repeal later even if only partially unimplemented.

Health care aside, what is the legality and constitutionality of the Obama administration unilaterally picking and choosing which laws to enforce and which programs to implement?

The small city of Richmond, California has some big ideas about seizing private property, and now it also has a big lawsuit on its hands. This is what happens when politicians use government power to help themselves and their private financial partners at the expense of others.

Last week the Bay Area city became the first in America to say it intends to use eminent domain to seize private mortgages whose value is higher than the current value of the homes they helped to buy. The city wants to force mortgage companies to sell loans on 624 properties, and if they refuse the city is threatening to seize the loans by brute government force.

Richmond wants to refinance the loans through the taxpayer-backed (and broke) Federal Housing Administration, pool them into a new security, and sell them to other private investors. Homeowners will get a free principal reduction, and the politicians will claim they eased the financial burden on borrowers.

The biggest winner will be Mortgage Resolution Partners, the San Francisco-based "community advisory firm" that came up with this idea, has been pitching it around the country, and will earn a fee on the repackaged mortgages. The losers will be investors who currently own the mortgages and are unlikely to receive fair-market value from the city. If the city does pay market value, Mortgage Resolution Partners might not make a profit with its loan rebundling.

Which is where the lawsuit comes in. Three mortgage-bond trustees sued on Wednesday in federal court to block the property seizure as unconstitutional. They have a good argument. The Constitution's Fifth Amendment says eminent domain must be for "public use," but in this case the property seizure would benefit private, often out-of-state investors.

Richmond claims the public purpose is to reduce the number of foreclosures and thus help neighborhoods battered by the housing bust. But the city can't know how many foreclosures there will be because more than two-thirds of the 624 are still current on their monthly payments. Other Richmond homeowners may also have to pay a premium for future home loans due to the new political risk to lenders imposed by Mayor Gayle McLaughlin.

All of this echoes the 2005 Kelo case when New London, Connecticut, seized private homes to clear land so Pfizer Inc. PFE +0.27% could build a research headquarters. Susette Kelo lost her home but Pfizer later abandoned the city. In a notorious 5-4 decision, the Supreme Court blessed the seizure, but we wonder if swing-vote Anthony Kennedy would do the same today. The lawsuit against Richmond says the city's claim to help the local economy is merely a pretext to benefit private investors, and such pretexts are a key issue in Fifth Amendment property-rights cases.

By the way, the plaintiffs include Fannie Mae and Freddie Mac, the government-run mortgage giants that buy mortgages in bulk and could be expected to lose big if other cities follow Richmond's lead. Several cities have expressed interest, including Seattle and Newark, N.J. So taxpayers who bailed out Fan and Fred have a stake in the lawsuit against Richmond.

The largest irony here is that the housing market is finally making a recovery. Last week's second quarter GDP report showed that investment in housing grew by 13.4%, following 12.5% in the first quarter. Leave it to politicians and their financial cronies to interfere with progress.

Given the data, Scheindlin had little choice but to find that the stop-and-frisk policy violated the Fourth Amendment as well as the equal protection clause of the 14th Amendment. A large number of searches have been conducted without reasonable suspicion, and these suspicionless searches have disproportionately targeted racial minorities. Of 19 individual stops, the court found that nine of the stop-and-frisks were unconstitutional, five of the frisks after stops were unconstitutional, and five were constitutionally permissible.

As MSNBC’s Adam Serwer notes, particularly telling is that most defenses of the NYPD’s program all but conceded its unconstitutionality. Rather than trying to deny that the program was discriminatory, defenders instead tried to change the subject to the question of whether it was effective. This response is defective for two reasons. First of all, effectiveness is not in itself an adequate defense of an unconstitutional policy. Scheindlin makes this clear: “Many police practices may be useful for fighting crime—preventive detention or coerced confessions, for example—but because they are unconstitutional they cannot be used, no matter how effective.”

Even if one were to argue the effectiveness of the policy should cause us to overlook those pesky Fourth and Fourteenth Amendments, the evidence for the NYPD program’s effectiveness is very weak. The argument rests on a post hoc ergo propter hoc fallacy—violent crimes rates have dropped in New York, New York has a discriminatory stop-and-frisk program, so the declining crime rates must have been produced by the discriminatory stop-and-frisk program.

There’s no reason to make this causal inference. The drop in violent crime rates in New York began well before the current stop-and-frisk program. Violent crime is declining nationally, not just in New York. Violent crime continued to drop in New York in 2012 even as the number of stop-and-frisk searches declined.

Given the data, Scheindlin had little choice but to find that the stop-and-frisk policy violated the Fourth Amendment as well as the equal protection clause of the 14th Amendment. A large number of searches have been conducted without reasonable suspicion, and these suspicionless searches have disproportionately targeted racial minorities. Of 19 individual stops, the court found that nine of the stop-and-frisks were unconstitutional, five of the frisks after stops were unconstitutional, and five were constitutionally permissible.

As MSNBC’s Adam Serwer notes, particularly telling is that most defenses of the NYPD’s program all but conceded its unconstitutionality. Rather than trying to deny that the program was discriminatory, defenders instead tried to change the subject to the question of whether it was effective. This response is defective for two reasons. First of all, effectiveness is not in itself an adequate defense of an unconstitutional policy. Scheindlin makes this clear: “Many police practices may be useful for fighting crime—preventive detention or coerced confessions, for example—but because they are unconstitutional they cannot be used, no matter how effective.”

Even if one were to argue the effectiveness of the policy should cause us to overlook those pesky Fourth and Fourteenth Amendments, the evidence for the NYPD program’s effectiveness is very weak. The argument rests on a post hoc ergo propter hoc fallacy—violent crimes rates have dropped in New York, New York has a discriminatory stop-and-frisk program, so the declining crime rates must have been produced by the discriminatory stop-and-frisk program.

There’s no reason to make this causal inference. The drop in violent crime rates in New York began well before the current stop-and-frisk program. Violent crime is declining nationally, not just in New York. Violent crime continued to drop in New York in 2012 even as the number of stop-and-frisk searches declined.

I tend to agree with this ruling. If you are going to make a "Terry stop", you need to be able to articulate reasonable suspicion.

I thought Scalia was a strict constructionist more than an originalist?

And regarding what the article purports to be inconsistent application of originalism by Scalia et al can't some of those cases be explained in whole or part by respect for stare decisis? For example, I could be wrong but wasn't the original case upholding McCain-Feingold before Scalia ascended to the court? Thus in ruling on the following cases in that line, there would be conflicting impulses between strict constuctionism/originalism and stare decisis.

On May 2, 1945, President Harry S. Truman appointed Justice Robert H. Jackson to serve as the representative of the United States and Chief of Counsel to prepare and prosecute before an international military tribunal the European Axis leaders and others who had committed atrocities and war crimes.

President Truman memorialized this appointment in an Executive Order, Number 9547 (click here). The President recited, in the Order’s opening language, that he was making his appointment of Justice Jackson to his new, collateral position “y virtue of the authority vested in me as President and as Commander in Chief of the Army and Navy, under the Constitution and statutes of the United States….”

Justice Jackson, acting pursuant to this appointment, then spent more than a year away from the Supreme Court and his judicial work. He missed the entire 1945-46 term of the Court. In summer 1946, as the Supreme Court was in recess and its next Term was approaching, Jackson was still serving, in Allied-occupied Nuremberg, as U.S. Chief of Counsel before the International Military Tribunal (IMT), prosecuting twenty-two accused individual criminals and various accused criminal organizations that had been part of Nazism and the waging of World War II.

In many quarters, Justice Jackson’s absence from the Supreme Court and his prosecutorial efforts at Nuremberg were controversial. Some questioned the legality of Jackson’s appointment. In June 1946, criticism increased after Jackson, defending himself against public attacks, released a statement alleging improper behavior by fellow justices. (For a Jackson List post covering that episode, click here.)

* * *

In late June 1946, the Attorney General of the United States, Tom C. Clark, received a telephone call in Washington from Ralph L. Emmons, a friend and former Department of Justice (DOJ) colleague. Emmons, who had served as United States Attorney for the Northern District of New York from 1936 until 1943, reported that some lawyers in his locality—Binghamton, New York, and its surrounding Broome County—were voicing criticisms of Jackson’s absence from the Court and the legality of his Nuremberg appointment. Emmons, a Jackson friend and defender, apparently was asking Clark to join in defending Jackson (and also, of course, in defending his and Jackson’s shared boss and appointer, President Truman).

Attorney General Clark apparently told Emmons, during their telephone conversation, that Jackson’s appointment was entirely legal. Thereafter, Clark commissioned, from Acting Assistant Solicitor General of the United States George T. Washington [yes, a relative of], a formal analysis of the question.

On July 2, 1946, Clark sent the following letter to Emmons:

I want to thank you for calling to my attention the criticisms which have been made in your region concerning the President's action in appointing Mr. Justice Jackson as United States prosecutor of the Axis war criminals in Europe.

As I told you on the telephone, I think such criticism is entirely unjustified.

I hope the enclosed memorandum, giving the facts about the appointment, will be of use to you. I don't think my name or that of the Department should be mentioned at the present time in this connection. However, if you should wish a formal statement from me later on, please let me know.

TOM C. CLARK Attorney General

The following was the Department’s legal opinion:

MEMORANDUM

Appointment of Mr. Justice Jackson as Representative andChief of Counsel of the United States in the Prosecution ofthe Axis War Criminals in Europe

By Executive Order 9547 of May 2, 1945, 10 Fed. Reg. 4961, President Tru¬man designated Robert H. Jackson, Associate Justice of the Supreme Court of the United States, to act as the representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States might agree with any of the United Nations to bring to trial before an International Military Tribunal. The appointment carried with it no additional compensation.

This appointment was made pursuant to the agreement entered into on August 8, 1945, by the United States, Great Britain, Russia, and France for the prosecution and punishment of the major war criminals of the European Axis. 59 Stat. 1544, 82 U.N.T.S. 280. The Charter of the International Military Tribunal annexed to and made a part of that agreement provides (art. 14) that each signatory power shall appoint a Chief Prosecutor for the investigation of the charges against and the prosecution of major war criminals, and that the Chief Prosecutors shall act as a committee for the following purposes:

(a) to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff,

(b) to settle the final designation of major war criminals to be tried by the Tribunal,

(c) to approve the Indictment and the documents to be submitted therewith,

(d) to lodge the Indictment and the accompanying documents with the Tribunal,

(e) to draw up and recommend to the Tribunal for its approval draft rules of procedure, contemplated by Article 13 of this Charter.

59 Stat. 1546, 1549, 82 U.N.T.S. 284, 292.

The Charter also provides (art. 15) that the Chief Prosecutors shall individually, and acting in collaboration with one another, perform the following duties:

(a) investigation, collection and production before or at the Trial of all necessary evidence,

(b) the preparation of the Indictment for approval by the Committee in accordance with paragraph (c) of Article 14 hereof,

(c) the preliminary examination of all necessary witnesses and of the Defendants,

(d) to act as prosecutor at the Trial,

(e) to appoint representatives to carry out such duties as may be as-signed to them,

(f) to undertake such other matters as may appear necessary to them for the purposes of the preparation for and conduct of the Trial.

59 Stat. at 1549, 82 U.N.T.S. at 292−93.

It is hardly necessary to call attention to the fact that the undertaking in¬volved−the indictment, prosecution, and trial of the chief war criminals in Europe−is of supreme importance to the whole civilized world. Nor is it neces¬sary to point out that this grave undertaking is unique in the history of judicial procedure.

It was, therefore, of the utmost importance that the Chief of Counsel for the United States be an exceedingly able man, of wide experience, of exceptional physical vigor, of peculiar aptitude for the task, and of great legal attainments. It was equally important that the President of the United States should be entirely free to select that citizen of the United States who he felt was best qualified to perform the duties of this office.

It must be conceded that Mr. Justice Jackson is eminently qualified to discharge the duties and responsibilities of the task assigned him. His record of accomplish-ment as Chief Prosecutor for the United States in the trial of war criminals now being conducted at Nuremburg speaks for itself. His record in this respect is, in fact, a complete justification of his appointment.

The appointment of Justice Jackson for this special mission is not only without legal objection, but it is also supported by ample precedent. It is a well-established practice for the President to secure the services of federal judges in connection with important national and international matters. This practice arose long ago. It is well illustrated by the following examples: Chief Justice Jay served as special envoy to England at the request of the President. Chief Justice Ellsworth served as special envoy to France. Chief Justice Fuller twice acted as an arbitrator of international disputes. Circuit Judge Putnam served as a commissioner under a conference with Great Britain relating to the seizure of vessels in the Bering Sea. More recently, Justice [Owen J.] Roberts served as chairman of the board appointed by President Roosevelt to investigate the Pearl Harbor disaster of December 7, 1941.

* * *

Additional details and credits—

• Until recently, Attorney General Clark’s opinion was unknown to the public—it was an unpublished document in private Department of Justice files.• Thanks to Assistant Attorney General Virginia A. Seitz, Office of Legal Counsel (OLC), Attorney Adviser Nathan A. Forrester and their DOJ colleagues, Attorney General Clark’s 1946 opinion was published last month in the first volume of a new series of important opinions written by OLC or its predecessor entities in DOJ from 1933 to 1977. For more information and a link to the volume in PDF form, click here.• Hat tips to Jess Bravin, who first wrote about OLC’s publication of supplemental opinions (click here) and then mentioned on Facebook that the collection includes the Clark legal opinion regarding Jackson at Nuremberg. • In August 1946, Attorney General Clark visited Nuremberg and observed a session of the final stage of the IMT trial, regarding the criminality of the charged organizations. For a photograph of Attorney General Clark and his son (and a future Attorney General) Ramsey Clark on that day, seated at the U.S. prosecutors’ table in Courtroom 600 in Nuremberg’s Palace of Justice, see Alex Wohl’s fascinating and important new book Father, Son, and Constitution: How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy (click here).• By the time Attorney General Clark arrived in Nuremberg in August 1946, Justice Jackson had delivered his closing argument to the IMT regarding the guilt of individual defendants and returned to the U.S., briefly, to catch up on Supreme Court work—their paths did not cross in Nuremberg.• Their paths of course did cross in Washington. In 1949, Justice Tom C. Clark was appointed to the Supreme Court. He and Justice Jackson became close colleagues and friends during their service together over the next five years.

Only those happily trampling on the last vestiges of freedom will deny that our federal government as a constitutional republic has ceased to function. The president can no longer control (nor does this one want to control) the enormous and ever-expanding bureaucracy functioning as a government by fiat. The legislative branch, so corrupted, so drunk by the allure of power, so disdainful of its constituents, is unable to stop its bankrupting ways. The judiciary is perhaps the worst. The Supreme Court is openly rejecting the authority of the Constitution itself.

If the federal government refuses to adhere to the enumerated powers of the Constitution, what can the citizenry do about it? The events of the past five years (more, actually) prove this. It has become virtually impossible to stop the agenda of a radical Chief Executive who brazenly uses the federal government as his personal political machine. It is almost impossible to defeat an incumbent member of Congress with all the advantages it has awarded itself. For all intents it is impossible to replace a member of the Supreme Court.

The left is content with this terrible turn of events. By “transformation” they meant the transfer of power to the state. Conservatives are loath to declare American exceptionalism dead, yet are powerless to stop the statist steamroller. With every cycle the situation worsens. At some point the unthinkable -- tyranny -- is upon us. We are running out of time. Only radical surgery will save the patient now.

Enter Mark Levin, M.D., with his new book, "The Liberty Amendments: Restoring the American Republic." Levin is a Constitutional scholar -- and he shines. He argues passionately that the federal government can be brought under control only if new limitations are thrust upon it by its citizenry. He proposes a Constitutional convention, not one called by Congress but one impaneled by two-thirds of state legislatures, and which would require a three-fourths margin to pass any new amendments. It is the lesser known of the two options provided by Article V of the Constitution.

What should a Constitutional convention tackle? Levin offers eleven amendments for consideration, with appropriate subdivisions, each carefully researched and each designed to reduce the power of the state.

Term limits for Congress is the first liberty amendment Levin offers. It is my view also the most important. Only when there are limits (12 years of service) will Congress be populated by men and women driven only by the call to service, not the siren song of power. The millions delivered by special interests for the re-election of incumbents who, in turn, reward said interests with billions in grants, contracts, tax shelters and the like -- will cease.

Levin calls for other limitations on Congress. He proposes an amendment to limit federal spending and another to limit taxation, the combination which will restore fiscal sanity while devolving power from the state. He offers an amendment to repeal the Seventeenth Amendment, returning to the Article 1 mandate that Senators be chosen by their state legislators.

What about the Supreme Court? “hould five individuals be making political and public policy decisions and imposing them on every corner of the nation...as they pursue even newer and more novel paths around the Constitution in exercising judicial review?” Levin points to the obvious: Sometimes mistakes are made (Roberts, anyone?) and America shouldn’t be punished for the rest of that jurist’s life. He proposes 12-year term limits for them as well.

What can be done to control, even reduce the size and scope of the bureaucracy? All federal departments and agencies must be re-authorized by Congress every three years or be terminated -- that’s what.

There’s a liberty amendment to protect and promote free enterprise, now under vicious assault. One to protect private property given the ability of the federal government suddenly to steal it. Amendments to increase the power of the States, and finally, an amendment to protect the voting process.

Who would have thought any such amendments would ever be needed? And that’s the point. Such is the nature of the crisis.

Levin quotes Tocqueville reflecting on the Constitutional Convention of 1776: “t is new in history of society to see a great people turn a calm and scrutinizing eye upon itself when apprised by the legislature that the wheels of its government are stopped...”

It is time for our legislatures once more to issue the clarion call.

Levin hopes “The Liberty Amendments” will launch a national discussion, and it will. Levin is a consequential man, and this is a consequential book. Some critics will dismiss the concept out of hand. It is they who should be dismissed -- unless they have bold new alternatives to propose. Nothing else is working, and nothing else will do. We have reached the tipping point.****

I've never understood the allure of congressional term limits. They do not allow for a member of Congress to gain the necessary expertise in the rules of the chamber or in the policy space(s) over which they are to have oversight.

BD,I checked Levin's website. There is no email contact info. to ask him your supposition. I would think he might answer that the longer one is in Congress the more they serve themselves and learn not to serve Americans from their districts better.

Is it not telling that your point suggests that we need career politicians to spend a lifetime learning how to navigate a political system?

I would submit to you that the reason we need term limits is because there is so much money involved. So much lobbying that has a corrupting influence not only on serving House members but the family members, their business colleagues, their friends who some how get sucked into the picture. The fact that in order to run one needs lots of money and going against influential politicians who have decades to set up self serving organizations of staffers, contacts, etc. along with decades of name recognition explains why so few incumbents lose their seats. What is it? 95% of incumbents win re-election. How is this possible with an approval rating hovering around, what, 10 or 20%?

I don't think Levin necessarily wants to take away the power of the voters to decide who gets re elected or not. But I think he realizes that with incombuncy comes a real danger of abuse of power, and corruption.

Don't you think corruption is rampant? Revolving doors in and out of the private and public sector. How else can we put some limit on this without term limits? I think this is what Levin is proposing. Term limits are better than allowing a small group of people to control 320 million without which there is almost no limit to their power.

CCP: I understand your position. I do. And I respect it. I just disagree with it.

Let me give you a concrete example. Intelligence oversight is poor, largely because those charged with oversight are ignorant of the process (as few MoCs have prior experience in the field. But, more importantly, perhaps, the select committees charged with intel oversight are term limited. I think we've seen how lack of oversight plays out.

When I ran for Congress for the first time (1984, in the 32d district of CA) the editorial page of the WSJ (then in its prime IMHO) was running an ongoing series about the 98%(!!!) incumbent re-election rate of the House of Representatives, due in great part to gerrymandering. Indeed, a silhouette of my district illustrated the point in many of the districts.

I made great hay with this in the debates and then Congressman Dan Lungren of the neighboring 42d (now Dana Rhorabacker's sp? district), who had run his brother in the 32d in 1982 due to the high Reagan Democrat vote in 1980) invited me to run for the Reps in 1986. Lacking the $100,000 of seed money he said would be needed, I declined-- in that incumbent Glenn Anderson (who due to his extreme seniority was chairman of the Public Works/porkbarrel committee (and as such he received considerable donations from around the country from various lobbyists) the race would have been quixotic anyway.

I mention this by way of saying I have been thinking about this issue on and off for some 30 years now. During those 30 years I have seen the experience here in California. Also, as a serious student of Mexico for some 40 years I have observed its system of "no re-election" whatsoever as well.

This is what I now make of it:

The Mexican system results in extreme dominance by the executive branch. The legislative branch has no institutional memory, and ever single one of them will need a new job when his term is up. Granted that for most of the time in effect Mexico's PRI was a one party state, which certainly turbocharges the dynamic, but IMO the lack of instutional memory and the need for a new job regardless of the quality of one's performance has powerful consequences.

Here in Calfornia I supported term limits for reasons similar to those of CCP. However based upon the results, I cannot say that things have gotten better, to the contrary I would say that they have gotten worse.

Now I am willing to consider limits if they are long enough, but 12 years seems too short to me for a senator. I would go with 18, and maybe 12 for a Congressman, but I am open to additional thoughts.

"Congress is not institutionally able to check the executive well in this policy space"

How so Big dog? Doesn't Congress have people who are knowledgeable do the research them and prep them?

Lack of experience or insight in a specific policy area such as health care did not stop Democrats and Obama from passing a 2,000 page bill that none of them read or probably even really understand what was in it.

The bill was almost written surely by Ivy leagues elites over 20 years.

As for term limits I am not sure I am for them I was only siting Marc Levin's proposal. I am not even sure he is committed to his proposals but has 'thrown' the ideas into the public domain for 'discussion'. The concept of term limits has popped up multiple times over the last 40 years according to Wikipedia which has a decent (it seems to me) historical perspective on those who serve in American government from GW's two term Presidential precedent that seems to have set a standard for 140 yrs. Apparently initially at least till the time of Andrew Jackson House members also limited themselves to two terms.

(CCP wrote): "As for term limits I am not sure I am for them I was only siting Marc Levin's proposal. I am not even sure he is committed to his proposals"

I have great respect for Levin, but when I heard him questioned on this it sounded like he was just throwing ideas into the mix. The big idea is the constitutional convention - which I oppose. Levin forgets that the people who want to tear up the constitution and start over are his opponents, not conservatives or so-called originalists. His thought that things couldn't get any worse is badly mistaken.

(Bigdog wrote regarding term limits): "I've never understood the allure of congressional term limits."

Implied is that there is an allure of term limits; they poll well. Newt knew that in the Contract with America and Levin knows that now. It creates the tempting us vs. them matchup, but solves nothing because the problems in congress are the fault of the voters and have nothing to do with members entering a 13th year.

We have term limits now - elections - or as George Will calls them, bringing your representative back to the district for discipline. There are at least 3 legitimate ways to get your member of congress to move along, take him or her down from within their own party, beat them in the general election, or if they just leave voluntarily. The first option here needs to be taken more seriously.

The 90-98% reelection rates (http://www.opensecrets.org/bigpicture/reelect.php) of mostly lousy elected officials indicate something is broken. (Crafty wrote): "due in great part to gerrymandering". This is right. The reelection rate is for districts that have an incumbent running. The gerrymandering means that most districts are not competitive. In these cases, the failed incumbent needs to be kicked out and can only happen from within the party. VERY few people get involved really picking the candidates from within the party, and the rest look at this condescendingly as getting involved with partisan politics. Yes it is partisan politics and it is very important work.

The media, just lower than congress in credibility, is AWOL on exposing incompetence. The members of congress get to make themselves look like good caring people, raise and receive money continuously, while no opposing view is often offered.

(BD writes) Intelligence oversight requires more experienced elected officials. True for intelligence oversight, but most of the federal government is far more intricate than it needs to be. They are wrongly trying to be the solution for all problems and overseer of all industries, payer of all needy - instead of governing, in a limited fashion. Did they really have major league baseball hearings? While we were at war?! And over-taxed, over-spent, over-regulated and whatever else one find fault with.

Article I, Section 4, Clause 2, "The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day." - Can you imagine today if the congress, for the year, had forgotten to meet until December, that the members were back in their districts - in their fields, businesses or professions - not passing more and more laws mostly about what the rest of us shouldn't be doing.

We are on the wrong course because we vote wrong and most often don't even put the right choices on the ballots. The wording and clauses of the constitution are the least of our problems. The electorate is mostly misguided and we haven't had a great leader in a very long time to make any sense of it. Weakening congress and empowering the permanent bureaucrat/technocrat class even further is not the answer.

"We are on the wrong course because we vote wrong and most often don't even put the right choices on the ballots. The wording and clauses of the constitution are the least of our problems. The electorate is mostly misguided and we haven't had a great leader in a very long time to make any sense of it. Weakening congress and empowering the permanent bureaucrat/technocrat class even further is not the answer."

This makes a lot of sense to me, but , , , I can envision a well drafted amendment or two rolling back the SCOTUS jurisprudence of the interstate commerce clause and strengthening state sovereignty passing the requisite number of State legislatures and once passed having some wonderfully restorative consequences.

I am loving this discussion. Some thoughts: gerrymandering has some to do with the situation, but there is not consensus on the level of impact (see Mann/Ornstein It's Even worse than We Thought).

90-98% reelection rate is for those who choose to run for reelection. The return rate is about 7-10% lower (see Doug's point three).

I agree with some, disagree on some point. MLB hearings and war: these are separate committees with different jurisdictions. Both need to do their jobs. Hyperpartisanship is enfeebling the role the Congress. Parties need to come together for the sake of the institution. GOP can talk about limiting Obama, but without active oversight, legislation, hearings (with teeth), etc. etc. the executive fills a power vacuum no matter who is president.

How intricate should oversight be in other policy spaces? There is a great deal to agriculture. I'd like that to be intricate, and it seems like a simple policy space. It is certainly less prestigious than foreign policy, for example.

PJ O'Rourke had a wonderful chapter in his "Parliament of Whores" about the Dept. of Ag. and how it should be abolished made sense to me then and makes sense to me now.

DoA was pretty much deleted by the Gingrich Congress, but then Bush-2 brought it back.

I would note (once again, sorry) that Glenn Beck was quite emphatic (and prescient IMO) that due to the march of progressivism (a.k.a. fascism) the Congress was becoming rather irrelevant.

A point to consider here as well is the FOURTH branch of government-- the bureaucracies. These sometimes act in a quasi-legislative capacity and sometimes in a quasi-judicial capacity. Either way, deep structural questions are presented.

I am loving this discussion. Some thoughts: gerrymandering has some to do with the situation, but there is not consensus on the level of impact (see Mann/Ornstein It's Even worse than We Thought).

90-98% reelection rate is for those who choose to run for reelection. The return rate is about 7-10% lower (see Doug's point three).

I agree with some, disagree on some point. MLB hearings and war: these are separate committees with different jurisdictions. Both need to do their jobs. Hyperpartisanship is enfeebling the role the Congress. Parties need to come together for the sake of the institution. GOP can talk about limiting Obama, but without active oversight, legislation, hearings (with teeth), etc. etc. the executive fills a power vacuum no matter who is president.

How intricate should oversight be in other policy spaces? There is a great deal to agriculture. I'd like that to be intricate, and it seems like a simple policy space. It is certainly less prestigious than foreign policy, for example.

Perhaps the federal government should only concern it's self with those things it's constitutionally mandated to do. Then we don't have to pass multi-thousand page bills to find out what's in it. We don't have to worry about agriculture oversight, because that's not the role of congress to manage.

I'm sorry but I think if you recheck you will see the comparison postulated is between Nixon and Hillbillary

Let see:

*$97,000 laundered by Tyson Foods, the largest employer in the state of AK, into the pocket of the wife of gubernatorial candidate's wife;*the Rose Law firm billing scandal which Hillary escaped because Webster Hubbell took the fall and in return Chinese front family the Riadys of Indonesia gave him a $700,000 consulting contract for doing nothing,*the mysterious death of Vince Foster and the papers that were moved out of his office that very night. Were these the missing Rose billing records that were discovered in Hillary's office after the statute of limitations had expired;*Bill's pardon of the Puerto Rican cop killer terrorists to facilitate his wife senatorial campaign in NY;*Bill pardon of scumbag financier Mark Rich's dealings with Iran due to the interventions of now AG Eric Holder;* Sending Johnny Chung to raise $$$ from the Taiwanese in return for sending an aircraft carrier through the straights between Taiwan and the mainland;*Whitewater;*sending relevant witnesses out country so as to foil investigations; *the politics of personal destruction-ask Paula Jones, Juanita Broderick, and others* impeachment* Wagging the dog-- distracting the impeachment proceedings with cruise missile launches against Iraq*etc etc etc

I am loving this discussion. Some thoughts: gerrymandering has some to do with the situation, but there is not consensus on the level of impact (see Mann/Ornstein It's Even worse than We Thought).

90-98% reelection rate is for those who choose to run for reelection. The return rate is about 7-10% lower (see Doug's point three).

I agree with some, disagree on some point. MLB hearings and war: these are separate committees with different jurisdictions. Both need to do their jobs. Hyperpartisanship is enfeebling the role the Congress. Parties need to come together for the sake of the institution. GOP can talk about limiting Obama, but without active oversight, legislation, hearings (with teeth), etc. etc. the executive fills a power vacuum no matter who is president.

How intricate should oversight be in other policy spaces? There is a great deal to agriculture. I'd like that to be intricate, and it seems like a simple policy space. It is certainly less prestigious than foreign policy, for example.

Perhaps the federal government should only concern it's self with those things it's constitutionally mandated to do. Then we don't have to pass multi-thousand page bills to find out what's in it. We don't have to worry about agriculture oversight, because that's not the role of congress to manage.

I know I eat lettuce from CA/AZ, oranges from Florida, grapefruit from Texas. I know farmers from my state were seeking permission to send excess crops to Cuba a couple/three years ago. All of these issues are legitimate exercise of the interstate commerce clause. And all of these things have a place in the agriculture committee. And I'm not even talking about the science of GMO foods or production of tractors in Illinois that are sent nationwide.

One of the great unwritten stories of the damage to the economy from team Obama is the relentless attempt to regulate areas that have not previously been regulated.

The health care mandate received a lot of attention and breaks new ground, but there are countless other areas that mostly fly under the popular radar.

Thanks to reader Danelle from Texas for forwarding this article to me about the Obama administration’s attempt to force local farmers and ranchers to obtain commercial long-haul licenses:

Tractors lumbering down country roads are as common as deer in rural Montana, but the federal government wants to place new driving regulations on farmers and ranchers.

“It’s a huge deal for us,” said John Youngberg of the Montana Farm Bureau. After years of allowing state governments to waive commercial driver’s license requirements for farmers hauling crops or driving farm equipment on public roads, the Federal Motor Carrier Safety Administration is poised to do away with the exceptions.

Regulators are suggesting that all wheat shipments be considered interstate, even when farmers making short hauls to local grain elevators aren’t crossing state lines. The change would make commercial driver’s licenses — and all the log books and medical requirements that go with them — a necessity for farmers. Some might not qualify.

The licenses would also be required of farmers driving farm equipment down public roads. Farmers hauling grain for a neighbor or landlord would be considered commercial drivers hauling for someone else.

Ranchers hauling livestock in trailers as small as 16 feet would also be subject to the new rules…

Traditionally, farmers driving farm machinery have been exempt from commercial driver’s licenses, as have farmers hauling wheat, provided they didn’t cross state lines and traveled no farther than 150 air miles to the elevator.

It just never ends. And the rationale sounds very familiar:

FMCSA argues that because grain will ultimately be shipped out of state, it should be regulated as an interstate product at every transportation step. Treated as a product destined to cross state lines, grain becomes federally regulated under the commerce clause of the U.S. Constitution.

Update: I really should have focused on the destruction of a way of life, not just economic destruction. Danelle futher e-mails:

This is regulation on a very personal level to those of us living anywhere in the west. While the bigger impact will be on full time farmers and ranchers, even more of us use the same equipment to transport our horses to rodeos, playdays, or safely down the road to the next pasture. We help our kids haul their livestock projects to County Fairs and Major Livestock Shows. Trailers are used to haul not only farm equipment but a they get things like welding rigs and generators to rural job sites (think oil rigs here). They’re also used in recreation for transporting bikes, quads, dune buggies and dirt track race cars safely to their destinations.

As an aside, last week, the boys and I were driving back to El Paso County from San Antonio (600 miles of mostly unpopulated desert). I wondered how someone like Obama would handle being dropped in the middle of that territory in a Chevy Volt on one of our 110 degree afternoons. Just one section of I-10 is 105 miles between towns with some very tough hills to get up. And in case you’re worried about whether today’s youth will be standing up for the 2nd Amendment, we were on our way home from 8 days at the Texas 4-H Shooting Sports games where over 2300 youths ages 8-18 competed in 43 disciplines including pistol, rifle, bows and shotgun.

*the mysterious death of Vince Foster and the papers that were moved out of his office that very night

I looked at the Vince Foster case and do not see anything that indicates homicide. I'm not saying the Clintons aren't scumbags, and corrupt, but even with your list, it doesn't come close to Buraq's blatant criminality.

So, if not for congress' keen oversight, the grapefruit you are eating would be poisonous?

Are you doubting the interstate commerce of the nation's food supply? Surely you jest. Since you are looking so keenly at the Constitution, tell me where the interstate commerce needs to be dangerous. Nope... just more than one state. You know: inter.

So, if not for congress' keen oversight, the grapefruit you are eating would be poisonous?

Are you doubting the interstate commerce of the nation's food supply? Surely you jest. Since you are looking so keenly at the Constitution, tell me where the interstate commerce needs to be dangerous. Nope... just more than one state. You know: inter.

The need to end economic warfare among the states was a driving force behind the push for a more powerful national government. Under the Articles of Confederation, states harassed each other with tariffs and--in James Madison's words--"rival and spiteful measures, dictated by mistaken views of interest." New York and Pennsylvania taxed overseas goods destined for New Jersey, which lacked a seaport. Delaware ignored the trade embargo against Britain and vitiated the union's policy choice and made money in the process. Economic disputes among states provided the impetus for the Annapolis Convention, which in turn led to the Constitutional Convention in Philadelphia.

The Constitution authorizes Congress to regulate commerce among the several states. The central, irreducible purpose of that power is to police state exploitation and discrimination. The constitutional debates contain only nine substantive mentions of the commerce clause. All reference the need to enjoin protectionist or exploitative state legislation; none contemplates affirmative federal regulation over the economy. If the delegates entertained notions of federal minimum wage laws and such, they kept those thoughts to themselves.

Partially true. But, Congress is not institutionally able to check the executive well in this policy space. And don't act like the situation is Obama specific. It seems to be the way of the executive.

The last executive I can recall who got even close to Buraq level corruption/criminality was Nixon, and he got impeached.

Quick historical note: no, he didn't. Only A. Jackson and Clinton have been impeached. Nixon quit before the House voted on the articles of impeachment.

Sorry, I was sloppy in stating that. Let's look at Nixon's articles of impeachment:

Articles of Impeachment

This is the full text of the Articles of Impeachment adopted by House Judiciary Committee on July 27, 1974.

Article 1

RESOLVED, That Richard M. Nixon, President of the United States, is impeached for high crimes and misdemeanours, and that the following articles of impeachment to be exhibited to the Senate:

ARTICLES OF IMPEACHMENT EXHIBITED BY THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES OF AMERICA IN THE NAME OF ITSELF AND OF ALL OF THE PEOPLE OF THE UNITED STATES OF AMERICA, AGAINST RICHARD M. NIXON, PRESIDENT OF THE UNITED STATES OF AMERICA, IN MAINTENANCE AND SUPPORT OF ITS IMPEACHMENT AGAINST HIM FOR HIGH CRIMES AND MISDEMEANOURS.

ARTICLE 1

In his conduct of the office of President of the United States, Richard M. Nixon, in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his consitutional duty to take care that the laws be faithfully executed, has prevented, obstructed, and impeded the administration of justice, in that:

On June 17, 1972, and prior thereto, agents of the Committee for the Re-election of the President committed unlawful entry of the headquarters of the Democratic National Committee in Washington, District of Columbia, for the purpose of securing political intelligence. Subsequent thereto, Richard M. Nixon, using the powers of his high office, engaged personally and through his close subordinates and agents, in a course of conduct or plan designed to delay, impede, and obstruct the investigation of such illegal entry; to cover up, conceal and protect those responsible; and to conceal the existence and scope of other unlawful covert activities.

The means used to implement this course of conduct or plan included one or more of the following: 1.making false or misleading statements to lawfully authorized investigative officers and employees of the United States;

2.withholding relevant and material evidence or information from lawfully authorized investigative officers and employees of the United States;

3.approving, condoning, acquiescing in, and counselling witnesses with respect to the giving of false or misleading statements to lawfully authorized investigative officers and employees of the United States and false or misleading testimony in duly instituted judicial and congressional proceedings;

4.interfering or endeavouring to interfere with the conduct of investigations by the Department of Justice of the United States, the Federal Bureau of Investigation, the office of Watergate Special Prosecution Force, and Congressional Committees;

5.approving, condoning, and acquiescing in, the surreptitious payment of substantial sums of money for the purpose of obtaining the silence or influencing the testimony of witnesses, potential witnesses or individuals who participated in such unlawful entry and other illegal activities;

6.endeavouring to misuse the Central Intelligence Agency, an agency of the United States;

7.disseminating information received from officers of the Department of Justice of the United States to subjects of investigations conducted by lawfully authorized investigative officers and employees of the United States, for the purpose of aiding and assisting such subjects in their attempts to avoid criminal liability;

8.making or causing to be made false or misleading public statements for the purpose of deceiving the people of the United States into believing that a thorough and complete investigation had been conducted with respect to allegations of misconduct on the part of personnel of the executive branch of the United States and personnel of the Committee for the Re-election of the President, and that there was no involvement of such personnel in such misconduct: or

9.endeavouring to cause prospective defendants, and individuals duly tried and convicted, to expect favoured treatment and consideration in return for their silence or false testimony, or rewarding individuals for their silence or false testimony.

In all of this, Richard M. Nixon has acted in a manner contrary to his trust as President and subversive of constitutional government, to the great prejudice of the cause of law and justice and to the manifest injury of the people of the United States.

Wherefore Richard M. Nixon, by such conduct, warrants impeachment and trial, and removal from office.

Adopted 27-11 by the Committee on the Judiciary of the House of Representatives, at 7.07pm on Saturday, 27th July, 1974, in Room 2141 of the Rayburn Office Building, Washington D.C.

So, if not for congress' keen oversight, the grapefruit you are eating would be poisonous?

Are you doubting the interstate commerce of the nation's food supply? Surely you jest. Since you are looking so keenly at the Constitution, tell me where the interstate commerce needs to be dangerous. Nope... just more than one state. You know: inter.

The need to end economic warfare among the states was a driving force behind the push for a more powerful national government. Under the Articles of Confederation, states harassed each other with tariffs and--in James Madison's words--"rival and spiteful measures, dictated by mistaken views of interest." New York and Pennsylvania taxed overseas goods destined for New Jersey, which lacked a seaport. Delaware ignored the trade embargo against Britain and vitiated the union's policy choice and made money in the process. Economic disputes among states provided the impetus for the Annapolis Convention, which in turn led to the Constitutional Convention in Philadelphia.

The Constitution authorizes Congress to regulate commerce among the several states. The central, irreducible purpose of that power is to police state exploitation and discrimination. The constitutional debates contain only nine substantive mentions of the commerce clause. All reference the need to enjoin protectionist or exploitative state legislation; none contemplates affirmative federal regulation over the economy. If the delegates entertained notions of federal minimum wage laws and such, they kept those thoughts to themselves.

Tell me again how big Monsanto was at the founding? John Deere? The oil to run the tractors? How many bananas were imported in 1787? How many predator species were coming in from Asia and African imports?

US Customs is a legitimate constitutional entity meant to address things like Asian and African imports. That, like immigration is something for the federal government to regulate. Funny enough, the more things the USG gets involved in, the less it does the things it's actually responsible for.

US Customs is a legitimate constitutional entity meant to address things like Asian and African imports. That, like immigration is something for the federal government to regulate. Funny enough, the more things the USG gets involved in, the less it does the things it's actually responsible for.

We have achieved partial agreement. But you didn't address all the questions.